Naham v. United States Department of State

Plaintiffs Ali Al Naham, his wife, and their three children, bring this action against the United States Department of State, Secretary of State John Kerry, the Deputy Assistant Secretary for Visa Services, and the Director of the National Visa Center ("NVC") (collectively, "Defendants") in connection with Defendants' failure to adjudicate visa applications filed by the wife and children, who reside in Yemen. Plaintiffs seek declaratory relief and an order compelling Defendants to schedule interviews and to adjudicate the pending visa applications. Now before the Court are Defendants' motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that follow, the 12(b)(1) motion is granted and the 12(b)(6) motion is denied as moot.

Plaintiff Ali Al Naham ("Al Naham") is a lawful permanent resident ("LPR") of the United States.[2] His wife and three children are citizens and residents of Yemen. (Dkt. No. 1 ("Petition"), ¶¶ 7-10.) In an effort to bring his wife and children to the United States, Al Naham filed several Forms I-130, known as "Petition[s] for Alien Relative, " on their behalf.[3] ( Id. ¶ 15.) The United States Citizenship and Immigration Services ("USCIS") approved the petitions and forwarded them to the NVC in 2007. ( Id. ) Plaintiffs then prepared their visa applications and sent them to the NVC in anticipation of interviews at the United States embassy in Sana'a, Yemen. ( Id. ¶ 16.)

Those interviews have not yet taken place. In 2010, the NVC twice directed Plaintiffs to refile their visa applications. ( Id. ¶¶ 18-19.) Plaintiffs did so, but heard nothing further. ( Id. ¶ 21.) Several years later, the NVC again directed Plaintiffs to file their visa applications online. ( Id. ¶ 22.) Plaintiffs did so on January 21, 2014. ( Id. ¶ 23.) In subsequent correspondence, the NVC informed Plaintiffs that "the cases were complete and waiting to be scheduled." ( Id. ¶¶ 26, 31, 32, 34.) No interviews have been scheduled since.[4]

Defendants argue that the United States embassy in Sana'a has been unable schedule interviews or adjudicate applications because of the precarious security situation there. (Dkt. No. 8 ("Def. Memo"), at 1.) The U.S. embassy compound was attacked by a mob on September 13, 2012. (Dkt. No. 9, Ex. A.) About one month later, a Yemeni citizen employed by the embassy was killed. ( Id. Ex. B.) On August 6, 2013, citing a "high security threat level in Yemen due to terrorist activities and civil unrest, " the State Department ordered the departure of nonemergency U.S. government personnel from Yemen and issued an advisory to U.S. citizens living there to "depart immediately." ( Id. Ex. C.) The embassy in Sana'a was, for some time, closed for all but urgent cases. ( Id. Ex. D.)

The State Department lifted the ordered departure for non-emergency personnel in January 2014, but the embassy was able to provide routine consular services on only a limited basis. ( Id. Ex. E.) Beginning in May 2014, the embassy remained closed for five weeks because of security threats, and again provided only limited routine consular services after the State Department ordered a reduction of government personnel in Yemen in September 2014. ( Id. Ex. E.) Terrorist attacks occurred frequently in Yemen for several months thereafter ( id. Exs. G-K), and on February 8, 2015, the embassy suspended all routine consular services and provided emergency services only ( id. Ex. M). The embassy advised that, because of closures and staffing interruptions, it was "experiencing extremely long wait times for Immigrant Visa interviews." ( Id. at 3.) Three days later, the State Department suspended all services, routine and emergency, and relocated embassy staff out of the country. ( Id. Ex. N.) At the time Defendants filed their motions to dismiss on February 23, 2015, the embassy in Sana'a remained closed, but the following day the State Department announced that the U.S. embassy in Cairo would "handle Immigrant Visa cases emanating out of Yemen, as well as process visas for Yemeni citizens." (Dkt. No. 19, Ex. D.)

Plaintiffs argue that they have been awaiting adjudication of their visa applications since "well before" any of the security issues cited by Defendants arose, and that Defendants have refused to consider reasonable alternatives suggested by Plaintiffs, including conducting visa interviews in other countries. ( See Dkt. No. 13, at 1-2.)

II. Legal Standard

Defendants move to dismiss this action for lack of subject matter jurisdiction, pursuant to Federal Rule 12(b)(1).[6] "Generally, a claim may be properly dismissed for lack of subject matter jurisdiction where a district court lacks constitutional or statutory power to adjudicate it." Kingsley v. BMW of N. Am. LLC, 12-CV-234, 12-CV-350 (JPO), 2012 WL 1605054, at *2 (S.D.N.Y. May 8, 2012) (Oetken, J.). "In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). At the same time, the court has "the power and obligation" to decide disputed jurisdictional facts by reference to materials outside the pleadings, including affidavits. APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (internal quotation ...

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